This month, the New Jersey Supreme Court decided that an emotionally disabled condo owner could have an emotional support dog although pets that size were expressly prohibited by the master deed of the condo development.  And compounded the damage by extending this holding to landlords being obligated to permit tenants to have an emotional support dog even if pets were prohibited by the terms of the written lease.  This decision is wrong for numerous reasons.

First, it is inappropriate for an unelected court to rewrite thousands of master deeds and declarations of covenants to burden private conduct.  There is no consideration of whether another owner or tenant may have fear of a 68 pound dog and that is why that owner or tenant decided to buy or rent there in a dog free environment.

Further, the plaintiff in the above case just went ahead and got the dog, knowing that same was prohibited in the development.  That arrogant unilateral action should not be rewarded in this legal system.

In addition, it seems that the court’s process for determining whether a resident is disabled, is porous at best.  There is no mechanism for a landlord or condo association to determine whether there is a disability, thus exposing it to a discrimination claim and likely that these parties will burden future courts with making medical determinations.

Next, the court inexplicably refused to confine itself to the facts of the case and unnecessarily proceeded to extend its holding to tenancies, which is an entirely different situation.  Landlords do not want pets because pets cause damage, smell and can trigger allergies.  A elderly homeowner in a two family house should be permitted to enforce a no pets clause in a written lease.  Perhaps she was bitten or attacked by a dog and is afraid.  As always with this court, there is no consideration of the rights and perspectives of landlords and other condo owners.

There was no discussion in the opinion of whether a tenant with a dog should have to pay an additional security deposit, or whether the tenant must be obligated to have insurance expressly covering the landlord if the dog attacks a third party.  Or that the landlord should have the option of cancelling the lease if a tenant elects to have an emotional support animal.

Unfortunately our Supreme Court has once again has gone out of its way to burden private conduct with unreasonable requirements and conditions, violating the rights of other tenants and homeowners who are entitled to assume and expect that the master deed or declaration would be enforced and honored.

I specialize in real estate litigation.  Call me with your issue today.

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Charles D. Whelan III has been committed to excellence for over 30 years. With offices located centrally in New Jersey, he is able to provide businesses and individuals with excellent legal services.

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